Common use of Conditions to Distribution Clause in Contracts

Conditions to Distribution. Subject to Section 4.4, the obligation of Biogen to consummate the Distribution is subject to the prior or simultaneous satisfaction, or, to the extent permitted by applicable Law, waiver by Biogen, in its sole discretion, of the following conditions. None of Bioverativ, any other member of the Bioverativ Group, or any Third Party shall have any right or claim to require the consummation of the Distribution, which shall be effected at the sole discretion of the Board. Any determination by Biogen, and any subsequent amendment, revision, withdrawal or change thereto made by Biogen prior to the Distribution and concerning the satisfaction or waiver of any or all of the conditions set forth in this Section 4.5 shall be conclusive and binding on the Parties. The conditions are for the sole benefit of Biogen and shall not give rise to or create any duty on the part of Biogen or the Board to waive or not waive any such condition. Each Party will use its commercially reasonable efforts to keep the other Party apprised of its efforts with respect to, and the status of, each of the following conditions: (a) the Commission shall have declared effective the Form 10, no stop order relating thereto will be in effect, no proceedings seeking any such stop order shall be pending before or threatened by the Commission, and the Information Statement (or the Notice of Internet Availability of the Information Statement) shall have been distributed to holders of Biogen Common Stock; (b) the shares of Bioverativ Common Stock to be distributed shall have been approved and accepted for listing by NASDAQ, subject to official notice of distribution; (c) the receipt and continuing validity of an opinion (the “Tax Opinion”) from tax counsel or other Third Party advisor, that is in form and substance acceptable to Biogen, substantially to the effect that, among other things, the Separation will, based upon and subject to the assumptions, representations and qualifications set forth therein, qualify as a transaction that is tax-free for U.S. federal income tax purposes under Section 355 and Section 368(a)(1)(D) of the Internal Revenue Code of 1986; (d) the receipt and continuing validity of an opinion from an independent appraisal firm to the Board, that is in form and substance acceptable to Biogen in its sole discretion, confirming the solvency of Bioverativ after the Distribution and, as to the compliance by Biogen in declaring to pay the Distribution, with surplus requirements under Delaware corporate law; (e) all permits, registrations and Consents required under the securities or blue sky laws of states or other political subdivisions of the United States or of other foreign jurisdictions in connection with the Distribution shall have been received; (f) no order, injunction, or decree issued by any Governmental Entity of competent jurisdiction, or other legal restraint or prohibition preventing the consummation of the Distribution or any of the related transactions shall be pending, threatened, issued or in effect, and no other event outside the control of Biogen shall have occurred or failed to occur that prevents the consummation of all or any portion of the Distribution; (g) the Internal Reorganization shall have been effectuated prior to the Distribution, except for such steps (if any) as Biogen in its sole discretion shall have determined need not be completed or may be completed after the Distribution Effective Time; (h) the Board shall have declared the Distribution and approved all related transactions (and such declaration or approval shall not have been withdrawn); (i) Bioverativ shall have executed and delivered each of the other Transaction Agreements; and (j) no events or developments shall have occurred or shall exist that, in the sole and absolute judgment of the Board, make it inadvisable to effect the Distribution or would result in the Distribution and related transactions not being in the best interest of Biogen or its stockholders.